Telecommunications Act of 1996
(Enrolled Bill (Sent to President))
TITLE V--OBSCENITY AND VIOLENCE
Subtitle A -- Obscene, Harassing, and Wrongful Utilization of
Telecommunications Facilities
SEC. 501. SHORT TITLE.
This title may be cited as the "Communications Decency Act of
1996".SEC. 502. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS
FACILITIES UNDER THE COMMUNICATIONS ACT OF 1934.
Section 223 (47 U.S.C. 223) is amended --
(1) by striking subsection (a) and inserting in lieu thereof:
"(a) Whoever --
"(1) In interstate or foreign communications --
"(A) by means of a telecommunications device knowingly --
"(i) makes, creates, or solicits, and
"(ii) initiates the transmission of, any comment, request,
suggestion, proposal, image, or other communication which is
obscene, lewd, lascivious, filthy, or indecent, with intent to
annoy, abuse, threaten, or harass another person;
"(B) by means of a telecommunications device knowingly --
"(i) makes, creates, or solicits, and
"(ii) initiates the transmission of, any comment, request,
suggestion, proposal, image, or other communication which is
obscene or indecent, knowing that the recipient of the
communication is under 18 years of age, regardless of whether
the maker of such communication placed the call or initiated the
communication;
"(C) makes a telephone call or utilizes a telecommunications
device, whether or not conversation or communication ensues,
without disclosing his identity and with intent to annoy, abuse,
threaten, or harass any person at the called number or who
receives the communications;
"(D) makes or causes the telephone of another repeatedly or
continuously to ring, with intent to harass any person at the
called number; or
"(E) makes repeated telephone calls or repeatedly initiates
communication with a telecommunications device, during which
conversation or communication ensues, solely to harass any person
at the called number or who receives the communication; or
"(2) knowingly permits any telecommunications facility under
his control to be used for any activity prohibited by paragraph
(1) with the intent that it be used for such activity, shall be
fined under title 18, United States Code, or imprisoned not more
than two years, or both; and
"(2) by adding at the end the following new subsections:
"(d) Whoever --
"(1) in interstate or foreign communications
knowingly --
"(A) uses an interactive computer service to send to a
specific person or persons under 18 years of age, or
"(B) uses any interactive computer service to display in a
manner available to a person under 18 years of age, any
comment, request, suggestion, proposal, image, or other
communication that, in context, depicts or describes, in
terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or
organs, regardless of whether the user of such service placed
the call or initiated the communication; or
"(2) knowingly permits any telecommunications facility under
such person's control to be used for an activity prohibited
by paragraph (1) with the intent that it be used for such
activity, shall be fined under title 18, United States Code,
or imprisoned not more than two years, or both.
"(e) In addition to any other defenses available by law:
"(1) No person shall be held to have violated subsection (a)
or (d) solely for providing access or connection to or from a
facility, system, or network not under that person's control,
including transmission, downloading, intermediate storage, access
software, or other related capabilities that are incidental to
providing such access or connection that does not include the
creation of the content of the communication.
"(2) The defenses provided by paragraph (1) of this subsection
shall not be applicable to a person who is a conspirator with an
entity actively involved in the creation or knowing distribution
of communications that violate this section, or who knowingly
advertises the availability of such communications.
"(3) The defenses provided in paragraph (1) of this subsection
shall not be applicable to a person who provides access or
connection to a facility, system, or network engaged in the
violation of this section that is owned or controlled by such
person.
"(4) No employer shall be held liable under this section for
the actions of an employee or agent unless the employee's or
agent's conduct is within the scope of his or her employment or
agency and the employer (A) having knowledge of such conduct,
authorizes or ratifies such conduct, or (B) recklessly disregards
such conduct.
"(5) It is a defense to a prosecution under subsection
(a)(1)(B) or (d), or under subsection (a)(2) with respect to the
use of a facility for an activity under subsection (a)(1)(B) that
a person --
"(A) has taken, in good faith, reasonable, effective, and
appropriate actions under the circumstances to restrict or
prevent access by minors to a communication specified in such
subsections, which may involve any appropriate measures to
restrict minors from such communications, including any method
which is feasible under available technology; or
"(B) has restricted access to such communication by requiring
use of a verified credit card, debit account, adult access
code, or adult personal identification number.
"(6) The Commission may describe measures which are reasonable,
effective, and appropriate to restrict access to prohibited
communications under subsection (d). Nothing in this section
authorizes the Commission to enforce, or is intended to provide
the Commission with the authority to approve, sanction, or
permit, the use of such measures. The Commission shall have no
enforcement authority over the failure to utilize such measures.
The Commission shall not endorse specific products relating to
such measures. The use of such measures shall be admitted as
evidence of good faith efforts for purposes of paragraph (5) in
any action arising under subsection (d). Nothing in this section
shall be construed to treat interactive computer services as
common carriers or telecommunications carriers.
"(f)(1) No cause of action may be brought in any court or
administrative agency against any person on account of any
activity that is not in violation of any law punishable by
criminal or civil penalty, and that the person has taken in good
faith to implement a defense authorized under this section or
otherwise to restrict or prevent the transmission of, or access
to, a communication specified in this section.
"(2) No State or local government may impose any liability for
commercial activities or actions by commercial entities,
nonprofit libraries, or institutions of higher education in
connection with an activity or action described in subsection
(a)(2) or (d) that is inconsistent with the treatment of those
activities or actions under this section: Provided, however, that
nothing herein shall preclude any State or local government from
enacting and enforcing complementary oversight, liability, and
regulatory systems, procedures, and requirements, so long as such
systems, procedures, and requirements govern only intrastate
services and do not result in the imposition of inconsistent
rights, duties or obligations on the provision of interstate
services. Nothing in this subsection shall preclude any State or
local government from governing conduct not covered by this
section.
"(g) Nothing in subsection (a), (d), (e), or (f) or in the
defenses to prosecution under subsection (a) or (d) shall be
construed to affect or limit the application or enforcement of
any other Federal law.
"(h) For purposes of this section --
"(1) The use of the term "telecommunications device" in this
section --
"(A) shall not impose new obligations on broadcasting
station licensees and cable operators covered by obscenity and
indecency provisions elsewhere in this Act; and
"(B) does not include an interactive computer service.
"(2) The term "interactive computer service" has the meaning
provided in section 230(e)(2).
"(3) The term "access software" means software (including
client or server software) or enabling tools that do not create
or provide the content of the communication but that allow a user
to do any one or more of the following:
"(A) filter, screen, allow, or disallow content;
"(B) pick, choose, analyze, or digest content; or
"(C) transmit, receive, display, forward, cache, search,
subset, organize, reorganize, or translate content.
"(4) The term "institution of higher education" has the meaning
provided in section 1201 of the Higher Education Act of 1965 (20
U.S.C. 1141).
"(5) The term "library" means a library eligible for
participation in State-based plans for funds under title III of
the Library Services and Construction Act (20 U.S.C. 355e et
seq.)."
SEC. 507. CLARIFICATION OF CURRENT LAWS REGARDING COMMUNICATION
OF OBSCENE MATERIALS THROUGH THE USE OF COMPUTERS.
(a) IMPORTATION OR TRANSPORTATION -- Section 1462 of title 18,
United States Code, is amended--
(1) in the first undesignated paragraph, by inserting "or
interactive computer service (as defined in section 230(e)(2)
of the Communications Act of 1934)" after "carrier"; and
(2) in the second undesignated paragraph --
(A) by inserting "or receives," after "takes";
(B) by inserting "or interactive computer service (as defined
in section 230(e)(2) of the Communications Act of 1934)"
after "common carrier"; and
by inserting "or importation" after "carriage".
(b) TRANSPORTATION FOR PURPOSES OF SALE OR DISTRIBUTION -- The
first undesignated paragraph of section 1465 of title 18, United
States Code, is amended--
(1) by striking "transports in" and inserting "transports or
travels in, or uses a facility or means of,";
(2) by inserting "or an interactive computer service (as
defined in section 230(e)(2) of the Communications Act of
1934) in or affecting such commerce" after "foreign commerce"
the first place it appears;
(3) by striking ", or knowingly travels in" and all that
follows through "obscene material in interstate or foreign
commerce," and inserting "of".
(c) INTERPRETATION -- The amendments made by this section
are clarifying and shall not be interpreted to limit or repeal
any prohibition contained in sections 1462 and 1465 of title
18, United States Code, before such amendment, under the rule
established in United States v. Alders, 338 U.S. 680 (1950).
SEC. 509. ONLINE FAMILY EMPOWERMENT.
Title II of the Communications Act of 1934 (47 U.S.C.
201 et seq.) is amended by adding at the end the following new
section:
"SEC. 230. PROTECTION FOR PRIVATE BLOCKING AND SCREENING
OF OFFENSIVE MATERIAL.
"(a) FINDINGS -- The Congress finds the following:
"(1) The rapidly developing array of Internet and
other interactive computer services available to individual
Americans represent an extraordinary advance in the availability
of educational and informational resources to our citizens.
"(2) These services offer users a great degree of control over
the information that they receive, as well as the potential for
even greater control in the future as technology develops.
"(3) The Internet and other interactive computer services offer
a forum for a true diversity of political discourse, unique
opportunities for cultural development, and myriad avenues for
intellectual activity.
"(4) The Internet and other interactive computer services have
flourished, to the benefit of all Americans, with a minimum of
government regulation.
"(5) Increasingly Americans are relying on interactive media
for a variety of political, educational, cultural, and
entertainment services.
"(b) POLICY -- It is the policy of the United States --
"(1) to promote the continued development of the Internet
and other interactive computer services and other interactive
media;
"(2) to preserve the vibrant and competitive free market
that presently exists for the Internet and other interactive
computer services, unfettered by Federal or State regulation;
"(3) to encourage the development of technologies which
maximize user control over what information is received by
individuals, families, and schools who use the Internet
and other interactive computer services;
"(4) to remove disincentives for the development and
utilization of blocking and filtering technologies that empower
parents to restrict their children's access to objectionable or
inappropriate online material; and
"(5) to ensure vigorous enforcement of Federal criminal laws
to deter and punish trafficking in obscenity, stalking, and
harassment by means of computer.
"(c) PROTECTION FOR `GOOD SAMARITAN' BLOCKING AND SCREENING OF
OFFENSIVE MATERIAL --
"(1) TREATMENT OF PUBLISHER OR SPEAKER -- No provider or user
of an interactive computer service shall be treated as
the publisher or speaker of any information provided by another
information content provider.
"(2) CIVIL LIABILITY -- No provider or user of an interactive
computer service shall be held liable on account of --
"(A) any action voluntarily taken in good faith to restrict
access to or availability of material that the provider or
user considers to be obscene, lewd, lascivious, filthy,
excessively violent, harassing, or otherwise objectionable,
whether or not such material is constitutionally protected;
or
"(B) any action taken to enable or make available to
information content providers or others the technical means
to restrict access to material described in paragraph (1).
"(d) EFFECT ON OTHER LAWS --
"(1) NO EFFECT ON CRIMINAL LAW -- Nothing in this section
shall be construed to impair the enforcement of section
223 of this Act, chapter 71 (relating to obscenity) or 110
(relating to sexual exploitation of children) of title 18,
United States Code, or any other Federal criminal statute.
"(2) NO EFFECT ON INTELLECTUAL PROPERTY LAW -- Nothing in
this section shall be construed to limit or expand any law
pertaining to intellectual property.
"(3) STATE LAW -- Nothing in this section shall be construed
to prevent any State from enforcing any State law that is
consistent with this section. No cause of action may be
brought and no liability may be imposed under any State or
local law that is inconsistent with this section.
"(4) NO EFFECT ON COMMUNICATIONS PRIVACY LAW -- Nothing in
this section shall be construed to limit the application of
the Electronic Communications Privacy Act of 1986 or any of
the amendments made by such Act, or any similar State law.
"(e) DEFINITIONS -- As used in this section:
"(1) INTERNET -- The term "Internet" means the international
computer network of both Federal and non-Federal
interoperable packet switched data networks.
"(2) INTERACTIVE COMPUTER SERVICE -- The term "interactive
computer service" means any information service, system, or
access software provider that provides or enables computer
access by multiple users to a computer server, including
specifically a service or system that provides access to the
Internet and such systems operated or services offered by
libraries or educational institutions.
"(3) INFORMATION CONTENT PROVIDER -- The term "information
content provider" means any person or entity that is
responsible, in whole or in part, for the creation or
development of information provided through the Internet or
any other interactive computer service.
"(4) ACCESS SOFTWARE PROVIDER -- The term "access software
provider" means a provider of software (including client or
server software), or enabling tools that do any one or more
of the following:
"(A) filter, screen, allow, or disallow content;
"(B) pick, choose, analyze, or digest content; or
"(C) transmit, receive, display, forward, cache, search,
subset, organize, reorganize, or translate content.".